31 August 2007

The Iemma government has continued its erosion of civil liberties by creating special exclusions zones in Sydney during the APEC conference in August 2007 for named persons. While this unjustified police state attitude is appalling on every level, it raises the opportunity to consider my previous blog post on a bill of rights...

By the way, let's put to one side that this is a bit of a kiddy conference that will achieve little except cost NSW business a great deal of money and enterain the spouses of delegates.

Let's say there is a right to association. This might cure the defect in this Iemma exclusion law. So, after an appeal to the Supreme Court of NSW we might find the law is ultra vires. It might also give the same right to an ex-prisoner convicted of violent offences to do the same thing. Of course, his parole conditions might prevent him protesting, but there's another opportunity to appeal to the Supreme Court on the basis that his bail conditions are in conflict with the bill of rights. And of course, he could have done his entire sentence and not even have any parole conditions at all.

This really is a hard problem. We need to trust the populace. We need law and order. Our legal system is based on people being free to do what they like, and if they break the law they will be punished. Where does pre-emptive punishment fit in Australia or NSW? A known, regular protester and dozens of his compatriots are now able to be banned from going to certain places in Sydney that any other person in the entire world can go. Is that OK? I don't think so. he might have mended his ways, or he may have not really done anything in the first place. Paddy Gibson has fewer freedoms than I do. I don't think that's OK.

There are a lot of things in which I am in heated disagreement with Philip Ruddock, but I have to say I am in heated agreement with him about Bills of Rights. Australia needs one like a hole in the head. As the Attorney-General said - a bill of rights didn't help African slaves in America.

A right is worthless without an obligation or ability to meet it. If one entrenches the obligation and ability then there is no need for the right. A right to water isn't much use unless someone has an obligation (and the ability) to provide it, and Ockham's razor tells us that if the obligation exists, there is no need for the right. In South Africa there is a right to housing. It's a right that is manifestly unmet.

A "right" is ephemeral and tells us nothing about how society can meet it. An obligation set out in legislation however is parliament-mandated, clear and able to be modified by parliament as required. So, if the Minister for Housing is obliged by legislation to provide housing assistance to certain people, we will know who needs to do what and with whatever funding.

Let's see what specifically is lacking in our society that provides the arguments used by bill of rights supporters; and let's fix those things. A bill of rights doesn't fix anything - legislation and action by the Executive does.

In Australia we are free to do what we wish, unless it is proscribed. We have a right to free speech right now; if parliament passes a law that the voters consider improperly interferes with that right, the opposition party will usually be only too happy to consider the issue.

You may also wish to consider that Zimbabwe's constitution has a bill of rights containing extensive protection of human rights... Yes, I understand that just because sometimes something doesn't work doesn't mean it's worthless. The point is that bills of rights are not the magic protector that they are made out to be. Australia's constitution clearly provides greater protections than Zimbabwe's - all without having to have a bill of rights and the attendant trouble that it may bring.

Australians have freedom that is inherent, and we have a parliamentary democracy that we can trust, even though we may not always agree with the actions of the Executive. To tinker with this by adopting a bill of rights would be unwarrantedly treading an unknown path.

The "Australian Federation Against Copyright Theft" wants Australian ISP's to become its policemen. Thankfully no ISPs are interested, and in particular, Telstra BigPond responded:

"While we do not encourage or condone piracy, particularly as we are a legal provider of online music, games and movies content, we do not believe it is up to the ISPs to be judge, jury and executioner in relation to the issue when the content owners have any number of legal avenues to pursue infringements,"...

"We are not going to take AFACT's claims against customers at face value."

You really should applaud a service provider who decides to take the side of its customer and not that of a commercially-interested lobby group.

17 August 2007

Cyberspace September 2007

Digital fax

My editor has insisted I discuss fax in the modern age, and amusingly, I received a fax from a registrar of the .com.au domain name space the other day because they couldn't email me. I've bowed to pressure.

Why would you send a fax? You have hard copy documents and can't scan them to image files; you or your recipient don't have an email account; or, your correspondent insists on a fax so he/she can see a signature. There might be other reasons, but I can't think of them.

Receiving

My firm receives all faxes via several phone lines into a PC; the faxes arrive as computer images. An operator opens the fax, works out who it was meant for, and forwards it via email to the intended recipient. There are several advantages to this: it avoids printing them out and trudging around eight floors of our office; you can send a fax intended for an Auckland lawyer to our, say, Sydney fax number; if more than one person needs to read the fax it is as easily sent to 10 lawyers as it is to one; the fax is readily registered into our document management system, and can be forwarded to a client for information or instructions.

Setting up something like this is not incredibly hard - there is hardware and software to install in the PC, training, and an operations policy; e.g.: you need to consider what happens when the fax operator goes home but you're pulling an all-nighter.

Sending

Sending faxes electronically from our computer desktops is not something we've spent a lot of time on. Most faxes get sent by a dedicated fax operator in our mail room. He is good at detecting wrong numbers, sorting out problems if the line is engaged, and generally fixing a lot of little things that can go wrong - humans are good at that stuff.

Smaller and mid-size firms have quite different requirements - it might be fantastic for a lawyer to hit a key and send a fax from his/her PC. You can do this from your own PC in many ways (although that rules out sending a fax if someone wants to see an ink signature). If you run a other server-based email system such as Exchange then you can purchase an add-on (there are dozens of these). With one of these add-ons installed you can fire up Outlook, type a fax phone number into the recipient's address field (instead of an email address) and press the Send button. The server will turn your email and attachments into a fax and send it all in the background.

If you don't have a mail server, you can use a standard analog modem. Microsoft has a lengthy article (http://tinyurl.com/2fkjyf) on how to print, scan and fax from your Windows XP PC. Most modems are fax modems and you can hook one up to your PC, connect it to a phone wall socket, and "print to fax." Whatever you can print, you can fax. More sophisticated solutions allow everyone in the office to share the one outgoing fax/modem.

Doing it online

There are other options and you don't need any fax hardware at all (although a scanner can be useful). For example, I used mBox (http://tinyurl.com/3cnosc) for some time, and it lets you send and receive faxes via email (and does other things) for a monthly subscription. It saves on a dedicated fax line and does everything (if you have a scanner) that a fax can do. I'd seriously consider a service like this if I had 10 users or less - but consider privacy and confidentiality.

Shameless plug

Don't forget that you can contribute to the fledgling http://practicesupport.org/, which is a discussion forum for legal or technology professionals. If you feel like reading some of my rants that don't make it into Cyberspace you can read more of me at http://acalvin.blogspot.com/.

10 August 2007

So if ever you are hauled into court on the basis of evidence obtained under a warrant you had no idea had been executed, which was approved by a government-sanctioned non-judge, and which in the process involved the commission of crimes by the police, then at least the rest of us can be happy in the knowledge that we live in a more secure Australia.

Richard Ackland sums up the state of Australian law - the situation being the result of knee-jerk reactions and blind following of USA attempts to make the world a more USA safer place.

08 August 2007

I heard on the news this morning that Angus & Robertson Booksellers is now demanding (in the same way that supermarkets do) upfront payments from book publishers before they will stock their books. They are apparently sending out invoices requiring payment, and if payment is not made then that publisher will not be a supplier to A&R anymore.

So, apart from payment for nothing (and I'm going to exercise myTrade Practices Actand Fair Trading Actthinking about this), what are the problems here? The first is that if a publisher can't or won't make the cash payment, then A&R will then have an excuse to gray market the book from overseas publishers. This will then lead to the demise of the Australian publisher/distributor. I imagine there will be other ramifications...

Yes, I know supermarkets do this, but just because other people do things with apparent impunity doesn't make it legal. I remember studying Australian constitutional law in about 1982, and remarking that the tobacco excise seemed to be illegal. My lecturer dismissed the argument on the basis that it had been working in Australia for years. Yet sometime in the late 90's or early 2000's someone finally did run the argument in the High Court and succeeded!

I imagine that A&R Bookseller's thinking is very much like the music industry's. "Let's see, we really don't understand technology or what the internet could do for us. Let's just make hard copy books more expensive - they're probably going to die out anyway (especially those useful technical books) - and milk them for what they're worth before we go broke. We don't like our customers - let's slug 'em."

07 August 2007

US swoop on mod-chip shops | Australian IT US FEDERAL customs agents have raided more than 30 businesses and homes in 16 states, looking for devices that allow pirated video games to play on Wiis, PlayStation 2s and Xboxes. Consoles ... US federal authorities have raided 30 businesses and homes after a year long investigation into illegal mod-chipping operations.

The alleged sale and distribution of illegal modification chips and copyright circumvention devices for the popular consoles and othersincluded 32 search warrants in 16 states, said the US Immigration and Customs Enforcement.

ICE declined to release the names of those targeted but said they are allegedly responsible for importing, installing, selling and distributing foreign-made devices smuggled into the US.

Illegal chips and other devices used on gaming consoles violate the Digital Millennium Copyright Act of 1998. Sales of counterfeit or illegally obtained games cost the industry about $US3 billion ($3.5 billion) a year globally, not including internet piracy, the Entertainment Software Association trade group estimates...

... "Illicit devices like the ones targeted today are created with one purpose in mind, subverting copyright protections," Julie L. Myers, assistant secretary of Homeland Security for ICE, said in a release. "These crimes cost legitimate businesses billions of dollars annually and facilitate multiple other layers ofcriminality, such as smuggling, software piracy and money laundering."

Spare me - what is the USA doing? Homeland Security??? Where does that fit? As for Julie L. Myers read this or this or this or this.

As for the claim by Myers that mod chips facilitate smuggling and money laundering... these things may in fact be part and parcel of getting the things into the country in the first place, but it's actually just all part of the one activity. The problem here is that the entertainment industry has somehow had laws made that give them protection afforded to no other. It's not like I can'tmodify my car to make it go faster, handle better, stop faster or have a great sound system.

Everyone I know who uses a mod chip does so to maximise the utility of their device. The XBOX is a piece of rubbish until you mod it and install Xbox Media Center. It then becomes an amazing device to play back your legally acquired music, your own photos, your home videos, browse the internet, use YouTube, watch online move trailers, watch CNN news, get the weather and other information, and so much more, as well as work as a DVD playerwithout an add-on infra red dongle (that doesn't work so well).

The resources used by the USA government in this raid are amazing, yet it does nothing to improve the lot of US citizens, it does nothing to improve the security of US citizens, it does nothing to improve peace or human rights or living conditions in any country, it does nothing to benefit anyone at all except the commercial interests of company owners and shareholders (who no doubt contribute greatly to US politicians personal campaign funds).

About Me

Well known for my column Cyberspace in the Journal of the Law Society of New South Wales, I'm in private practice in a specialist technology & commercial law firm - Pym's Technology Lawyers. I've been in-house legal counsel at major enterprises:

Ash Street Partners

Pym's Technology Lawyers

Sydney Water Corporation (Australia's largest water utility), and

Technology & Commercial law team at the Australian Broadcasting Corporation (Australia's pre-eminent media organisation),